Geraldo: Blame the hoodie for Trayvon Martin shooting as much as the shooter; Update: Florida law explained

posted at 11:00 am on March 23, 2012 by Ed Morrissey

As a gun-rights advocate, I constantly have to remind people that guns are a tool, not an entity with motives, and that the responsibility for its use lies with the shooter. For some reason, we have an impulse after tragedies to try to blame objects rather than people, or more likely, to blame everyone else (“society”) for the personal choices of an individual. I’m not sure I’ve ever seen it taken to the extent that Geraldo Rivera does in this morning’s Fox and Friends segment on Trayvon Martin’s death:

“I have a different take, Brian, on that,” Rivera said. “I believe that George Zimmerman, the overzealous neighborhood watch captain should be investigated to the fullest extent of the law and if he is criminally liable, he should be prosecuted. But I am urging the parents of black and Latino youngsters particularly to not let their children go out wearing hoodies. I think the hoodie is as much responsible for Trayvon Martin’s death as George Zimmerman was.”

According to Rivera, the so-called hoodie has negative connotations attached to it, which may inspire ill-advised reflexive reactions.

“When you see a kid walking down the street, particularly a dark skinned kid like my son Cruz who I constantly yelled at when he was going out wearing a damn hoodie or those pants around his ankles,” Rivera said. “Take that hood off. People look at you and what’s the instant identification? What’s the instant association? Its crime scene surveillance tapes. Every time you see someone stick up a 7-Eleven, the kid is wearing a hoodie. Every time you see a mugging on a surveillance camera or get the old lady in the alcove, it’s the kid with a hoodie. You have to recognize that this whole stylizing yourself as a gangsta — you’re going to be a gangsta wannabe? Well, people are going to perceive you as a menace. That’s what happens. It is an instant reflexive action.”

I’ve had a number of e-mails asking me to analyze the issues in the Martin/Zimmerman shooting. I’ve struggled with it, but I can assure readers that hoodies never came up in my calculations. I do get what Rivera is saying; I had this conversation with my nephew when he was a teenager, explaining that clothes are a statement of values that get communicated instantly to the people around him, especially to those who don’t know him. That doesn’t mean that baggy pants or a hoodie makes you complicit in your own death when someone shoots you for no other reason, however, and it’s a blame-the-victim impulse to make that argument.

Otherwise, this is a tough case to explain, in part because I’m much more familiar with Minnesota law than Florida law on self-defense. Under Minnesota law, Zimmerman would have been charged with some form of homicide, probably manslaughter, if the circumstances are what we have seen in the media. Minnesota law requires that the actor using lethal force in self-defense has to first be in reasonable fear of his life or of grave bodily harm, the latter of which means losing a limb, an eye, or significant maiming and not just getting one’s ass kicked. That requires some demonstration of lethality or threat of maiming before the shooting, not just a threatening motion.

Second, and equally importantly, the actor in a lethal deployment of self-defense has to not have contributed to the conflict that required it. This is where the difference between state laws might be an issue. In Minnesota, even under the Castle Doctrine law that Governor Mark Dayton vetoed, chasing down someone to shoot them would have been a clear violation of self-defense statutes and would probably result in manslaughter charges. I’m not sure how Florida’s Stand Your Ground law is written, though; it might allow someone who got threatened to chase the person who did the threatening with the intent of using deadly force. If so, that’s incredibly stupid, but it might explain why Zimmerman couldn’t get charged in this case. Stand Your Ground laws in general are supposed to allow people to defend themselves without having to demonstrate that retreat was impossible — in other words, avoiding the need to defend one’s self from the second-guessing of a district attorney later on whether the shooter had the opportunity to run and hope the potential attacker didn’t shoot, stab, or chase anyway. They aren’t supposed to allow shooters in this situation to chase down the threat and shoot, but again, I don’t know how Florida wrote its law.

My late friend Joel Rosenberg, who was also my carry-permit instructor, taught one lesson above all else: a carry permit was not a Junior G-Man badge, especially not in Minnesota. That seems to be a lesson Zimmerman didn’t learn, and Florida may need to modify its carry and self-defense statutes to make that much more clear.

Joel literally wrote the book on carry licensing in Minnesota, The Carry Book: Minnesota Edition. Unfortunately Joel passed away before he could complete an edition that looked at the issue nationally, but even if you’re not in Minnesota, there is a ton of good advice for those who want to pursue carry licenses and handle firearms. My particular favorite chapter of the book is titled, “Cowardice 201: A PhD Seminar in Advanced Staying Out of Trouble,” in which Joel reveals that the true secret of karate is to run faster than everyone else. Self-defense starts with keeping out of situations where you will likely find yourself threatened. Joel’s book is a sobering read, literally and figuratively.

Update: I forgot to mention another point about self-defense law in Minnesota. Once the threat ends, self-defense actions have to stop as well at that moment. That means that an antagonist who stops threatening lethality can’t be attacked with lethal force in self-defense.

Update II: A reader who has a carry permit in Florida e-mails a detailed response, which clarifies Florida law and shows that it’s much the same as Minnesota’s. What follows are his lengthy comments; I’m blockquoting where he quotes:

I have a Florida concealed weapon license. You said:

Minnesota law requires that the actor using lethal force in self-defense has to first be in reasonable fear of his life or of grave bodily harm, the latter of which means losing a limb, an eye, or significant maiming and not just getting one’s ass kicked. That requires some demonstration of lethality or threat of maiming before the shooting, not just a threatening motion.

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.

That means that you can use force (BUT NOT DEADLY FORCE) to proportionally defend against imminent use of force. So if someone cocks their fist back to punch you, you can beat them to the punch. You can’t #$%&ing shoot them because they were about to punch you.

However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony

So if someone is about to kill or severely main you or someone else, you can respond with deadly force. Again, the response has to be proportional to the threat. read 776.013, as it contains a bunch of stipulations about the use of deadly force.

Finally, 776.041:

The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Note #2… initially provokes the use of force against himself. That might apply here.

There is no situation where a confrontation you initiated, in which you were never threatened with mortal danger, can be legally ended by you using lethal force. Zimmerman should be charged with manslaughter or maybe even second degree murder under Florida law.

My late friend Joel Rosenberg, who was also my carry-permit instructor, taught one lesson above all else: a carry permit was not a Junior G-Man badge, especially not in Minnesota. That seems to be a lesson Zimmerman didn’t learn, and Florida may need to modify its carry and self-defense statutes to make that much more clear.

They do make it clear, and the brochure you get when getting a license spells it out explicitly (this is an offical State of Florida brochure). They contain case studies where lethal force is not justified. Like it talks about one case where someone chased a robber off of their property and shot them. They were charged. You can use a
gun to stop a forcible felony, not bring someone to justice after they’ve fled. There is a case where neighbors get into an argument and one neighbor swings a garden hose at the other, who replies by shooting him. Charged. You can’t use a gun if you’re not in mortal danger. The brochure clearly explains that a CWL does not make you a law enforcement officer. I got this hammered into me really hard in the course I took (which is mandated by the state).